Sen. Barack Obama recently chided his running mate, Joe Biden, for engaging in “rhetorical flourishes” after the Delaware Democrat predicted that hostile foreign elements would test the mettle of a President Obama in the first six months of his term. Speaker of the House, Nancy Pelosi, should receive a similar upbraiding for the ill-considered remarks she made to the Associated Press on the future of comprehensive immigration reform:

Pelosi . . . said Congress would have to tackle the politically sticky job of overhauling immigration laws in the new Congress, after a bipartisan measure collapsed last year. The estimated 12 million immigrants in the U.S. illegally ‘are part of the U.S. economy. We cannot send them all home, and we cannot send them all to jail, so we have to address it,’ Pelosi said. Any solution would have to be bipartisan, she said, so it may require sacrificing some of Democrats’ past priorities, such as giving illegal immigrants a path to citizenship. ‘Maybe there never is a path to citizenship if you came here illegally,’ Pelosi said. ‘I would hope that there could be, but maybe there isn’t.’

Obama supporters and media pundits have been scratching their head and wondering aloud, “What could Joe Biden have been thinking?” Supporters of comprehensive immigration reform ask the same question about Pelosi’s unilateral elimination of an important human aspiration (even before an election outcome she hopes will be a Democratic mandate for reform).

Why did Speaker Pelosi, before votes are even counted, throw the undocumented under the bus of a supposed Republican blowback against a path to legal status? What if the Republican minority in the house sinks to inconseqential proportions and a filibuster-proof Democratically-controlled Senate is elected?

The first rule of negotiation is never to bid against yourself. Why in this pre-election phase, should she preemptively dash the hopes of the undocumented to be granted equality of civil rights (notwithstanding their violations of noncriminal immigration law provisions, but only after their debt to society is repaid through payment of fines and back taxes)? Has she forgotten the discrimination visited upon her Italian ancestors when they were a despised underclass in an earlier xenophobic era? America must not tarnish our heritage as a nation of immigrants by enacting laws creating a permanent lower-caste population of off-the-path human beings.

Will the Champion of Change rebuke Speaker Pelosi’s Audacity of No-Hope?

As political theatre, the Vice Presidential debate was so-so entertaining but sorely lacking on a critical issue of public policy. There was a “shout out” to third graders and a salute to the Joe Sixpacks and Hockey Moms of America from Gov. Palin, a politician who seems never to have uttered the word “immigration” from Wasilla to Anchorage to the lower-48 states’ campaign trail. There was plenty of kitchen-table talk and the debunking of Sen. McCain’s maverick moniker by Sen. Biden. But where were the candidates on the issue that immigration policy wonks and much of the public want aired? Where was Gwen Ifill, usually a class act journalist, who never asked about immigration reform?

Our country needs sunlight on immigration. Our citizens need to hear how the undocumented children and teens brought across the border by their struggling parents can be allowed to contribute to society rather than face a a fast track to the subterranean economy and street-gang membership. Our country needs an alternative to showboating ICE raids and wedge-issue politics.

Ironically, of all the pressing problems that need fixing, none could be accomplished so inexpensively as immigration reform. Budget-busting issues like health-care, tax cuts for folks earning less than $250,000 (as Obama-Biden support) or for all (as McCain-Palin propose), infrastructure refurbishment and green energy initiatives — all are threatened by the Wall Street bailout (just sweetened to $850 million in order to tease out more House votes). Comprehensive immigration reform, on the other hand, will be funded by user fees and the payment of fines and taxes as the admission ticket for unauthorized immigrants yearning to get on the path to legal status. Humane solutions and fiscal responsibility can go hand in hand with immigration reform – if only we’d just talk about it.

Economists talk about the moral hazard – the notion that people should not be free to violate principles of good faith and fair play, but instead should be held accountable for their mistakes and transgressions. As Wikepedia tells us (at least as of 9/25/08):

Moral hazard is the prospect that a party insulated from risk may behave differently from the way [he, she or] it would behave if . . . fully exposed to the risk. Moral hazard arises because an individual or institution does not bear the full consequences of [his, her or] its actions, and therefore has a tendency to act less carefully than [he, she or] it otherwise would, leaving another party to bear some responsibility for the consequences of those actions.

In other words, moral hazard connotes irresponsible, perhaps lawless, risk-taking behavior that ultimately mistreats or unfairly disadvantages others. Economists, ethicists and many members of the public have decried the wholesale disregard of moral hazard in the bipartisan effort within Congress and the Bush Administration to bail out Wall Street. As a pragmatic matter, to promote the general welfare and avoid the seizing up of our economy for lack of liquidity, politicians are rising “above politics” and doing what they think is the right thing to save the economy and the American people.

Pragmatism and doing the right thing, despite moral hazard, is much less popular, however, when it comes to immigration – a word uttered only twice during the logorrheic speeches at the Democratic and Republican party conventions. Bailout amnesty for promoters and borrowers of “liar’s loans” is fine, I suppose, if it promotes the general welfare. On the other hand, according to our morally nimble politicians, legal status for crossing the border to work and feed one’s family, performing jobs that we need done but disdain for ourselves, would “reward law violators,” and that would be wrong.

The French, I guess, are better at the practice of countenancing ethical hairsplitting. As François, Duc De La Rochefoucauld, sagely observed: “Hypocrisy is an homage that vice renders to virtue.”

Bloomberg.com has posted a scary article on how America’s growing financial crisis might lower our nation’s appeal as a world financial center and repository of foreign investments. In a strange coincidence, Wall St. Journal immigration reporter, Miriam Jordan, reported today on the global relocation of people seeking a better, more prosperous life. Her article (“With Millions on the Move, This Guide Maps the Routes to Prosperity”) reports on a new study by the Economist Intelligence Unit, confirming that the U.S. still ranks #1 in “attractiveness to immigrants.”

If (despite the financial turmoil) our nation remains the destination country of choice for immigration, why are our legislators and the Administration not scurrying to adopt more welcoming investment- and employment-based immigration laws?

The Congress could start by reauthorizing the regional center pilot program, a critical component of the EB-5 Immigrant Investor visa category. Regional center authorization runs out on September 30. According to Invest in the USA (IIUSA), the failure to reauthorize the EB-5 regional center program will cause the loss of $100 million in investment and 3,000 new jobs in Vermont alone, and similar losses will occur in California, Maryland, Wisconsin and other states with active regional centers. Senator Patrick Leahy of Vermont is reportedly working with the Senate leadership to include a simple five-year extension in a continuing resolution (CR) that the House and Senate will pass next week to fund the government after September 30. The CR will start in the House and will not be subject to amendment in the Senate. Therefore, the EB-5 extension, if it is to be enacted before the sunset, must be included in the House version of the CR.

On another front, the House Judiciary Committee held a rescheduled mark up two days ago on four immigration bills including, H.R. 5882, a green card recapture bill supported by the Compete America coalition. The recapture bill ought not be controversial. It merely allows the preservation (recapture) of squandered immigrant visas left unused because the responsible agencies (State, USCIS and the FBI) could not process the allocated visa quota in prior years before each annual deadline. Alas, the committee ran out of time before it could mark up H.R. 5882. Reportedly, a mark up might be rescheduled for next week. If Congress decides to adjourn for the elections on September 26, however, then the chance of enacting H.R. 5882 grows very dim.

Laudably, Treasury Secretary Paulson and members of Congress are working this weekend to create a new government entity to assume toxic loans and restore stability to the financial system. Why can’t others in the legislative power structure, having just come off a five-week vacation, work over the weekend to inject prosperity into our country by the speedy adoption of enlightened and essential immigration laws?

Harry Shearer, the actor and radio host, has a regular feature on LeShow, his weekly radio program. With deadpan voice, and music and lyrics in the background (“I’m sorry; so sorry”), Shearer reads a slew of recent public apologies from the famous and infamous, including a number of government officials. I doubt that the Labor Department’s Sept. 17 announcement qualifies as a legitimate apology. Here it is:

The Department has been presented with evidence indicating that prior to its recent audits, many immigration attorneys believed that the Department’s rule regarding consideration of U.S. workers did not apply to them unless they represented not only the employer seeking the labor certification, but also the alien for whom the certification was being sought. That interpretation is incorrect, as the Department’s recently issued PERM program clarifying guidance makes clear. Nevertheless, the Department will apply the requirements of the consideration rule as interpreted by its recent guidance only to labor certification applications the recruitment for which was begun after August 29, 2008, the date on which the Department’s final guidance was issued. All pending audits triggered exclusively by consideration rule concerns are therefore being released and will be processed in accordance with their original filing date.

So the DOL — in a spirit of surprised discovery and more surprising leniency — has just learned, apparently before August 29, 2008 when it issued its Restatement, that many immigration lawyers were fundamentally misinterpreting its PERM regulation. These lawyers “incorrect[ly]” believed that the attorney for the employer was exempt from the agency’s PERM labor certification rule prohibiting consideration of the qualifications of U.S. worker applicants for the advertised job. As a result, the DOL has ceased the all-client audit of the Fragomen firm announced on June 2 to preserve “program integrity.” The DOL’s announcement does not disclose the newly discovered “evidence” to support its conclusion about mistaken lawyering. Perhaps some of that evidence came from AILA or maybe it came from Covington & Burling’s brief outlining the relevant case law (at page 16 et seq.) filed in the Fragomen lawsuit against DOL. None of this evidence, however, is all that recent. I can only speculate, but maybe the immigration attorneys to whom the agency refers are the lawyers in the Department of Justice’s Office of Immigration Litigation (OIL) representing DOL. Perhaps the OIL lawyers informed DOL that the agency’s surreptitious insertion of a few words imposing a new prohibition on the employer’s attorney into the “consideration” rule of the final PERM regulation might well be a violation of the notice and comment requirements of the Administrative Procedures Act. Maybe the OIL lawyers suggested that the federal district judge in the Fragomen litigation might take umbrage over this bureaucratic sleight-of-hand. In any event, given that the DOL says we immigration lawyers were all wrong in misreading the consideration rule, I — on behalf of myself and any other immigration lawyers who share my sentiment — hereby apologize:

* I’m sorry for failing to notice the text of the final rule and discovering the DOL’s insertion of a few words to effect an unannounced change to the consideration provision. * I regret that I trusted the DOL to alert the public in the supplemental statement accompanying the final PERM rule that the text of the section on consideration had changed. * I was wrong to believe the DOL was serious in its June 2 press release, its later FAQ and its “Clarification” bulletin, in proscribing certain types of attorney behavior during the PERM recruitment process, only to see these pronouncements superseded and Dissuasion’s Disappearance in the August 29 Restatement. * I was naive and gullible to suppose that DOL viewed immigration lawyers as good-faith collaborators in a legal process where rules of fair play are honored.

So Mr. Shearer, I hope you consider my apology for LeShow. I doubt you’ll be hearing one from DOL. ——–

The last few days I’ve been gnawed upon by the feeling that my recent postings on the unreliable words of USCIS and DOL left something important unsaid. The recanting of DOL and reneging of USCIS keep reminding me of my law school days as my classmates and I watched the daily unfolding of the Wategate scandal on TV in the student lounge.

When DOL issued its “restatement” of the role of attorneys in PERM recruitment and the AAO said, in effect, that USCIS is not bound by anything it says unless contained in a regulation or precedent decision, the words of Nixon’s then Press Secretary, the late Ron Ziegler, came to mind. He famously repudiated all of his previous factual statements about the Nixon Administration’s asserted non-involvement in the Watergate break-in and cover-up by saying that his prior statements were “inoperative.”

Our immigration bureaucrats seem to have forgotten this lesson of history. Facts are never inoperative. Statements, once made and relied upon, can never be imagined away with the turn of an administrator’s phrase, as if they never happened.

An important reliance interest is damaged when the public cannot trust government to stand by its word. Stakeholder expectations, and business and personal plans, are dashed against the rock of administrative duplicity if not mendacity when governmental announcements of policy are issued with implicit mental reservations that these utterances are ephemeral and can be revoked at will. Words are not vapors that dissipate with the wind of bureaucratic expediency.

Pope John Paul II had it right when he said:

Trust is essential for our social wellbeing. Without trusting the good will of others we retreat into bureaucracy, rules and demands for more law and order. Trust is based on positive experiences with other people and it grows with use. We need to trust that others are going to be basically reasonable beings.

Owen D. Young, a lawyer and former chairman of GE, was also correct in observing:

We may accept the expanding power of bureaucrats so long as we bask in their friendly smile. But it is a dangerous temptation. Today politics may be our friend and tomorrow we may be its victims.

Why do we lawyers busy ourselves with the reading of immigration policy memoes that cannot be believed? Why do we fly or drive to attend liaison meetings with government agencies for front row seats at word-fests of deception? What good are we to clients if we cannot offer assured statements about what the “law” is?

Or to put it more tangibly, suppose undocumented immigrants disbelieved the following DHS announcement communicated through its Assistant Press Secretary, Michael Keegan, in a September 11 email to AILA:

In the event of an emergency – such as a hurricane – and the need for an officially ordered evacuation, our highest priorities are the safe evacuation of people who are leaving the danger zone, engagement in life-saving and life-sustaining activities, maintenance of public order, prevention of the loss of property to the extent possible, and assistance with the speedy recovery of the region. There will be no DHS immigration enforcement operations associated with evacuations and sheltering. The department’s law enforcement components will be at the ready to help anyone in need of assistance. Obviously, the laws will not be suspended, but in the event of an evacuation, we want to make sure that we can help local authorities move traffic out of the danger zone quickly, safely, and efficiently. (Italics added.)

What if the undocumented in the path of Hurricanes Ike or Gustav decided not to board buses to escape the hurricanes because they suspected that the announcement was in truth a sting operation? What if they instead stayed put and drowned? Would those deaths be inoperative?

There’s little wonder why confidence in government is at a low point. In a recent AAO decision, USCIS went out of its way to say that the public and the immigration bar should not be lulled into deceiving themselves that the agency will stand behind its public pronouncements:

[T]he legacy INS comments in the supplemental information to the . . . regulation are not legally binding on USCIS. . . .

[E]ven where an agency memorandum or General Counsel opinion is publicized and discussed in a widely circulated immigration periodical, the document will not be considered as a rulemaking that a petitioner may rely on.

So the lesson here is that every time a lawyer or a stakeholder is tempted to rely on a USCIS web posting, press release, memo, press conference, answer in a liaison meeting or other utterance (except for published final rules and decisions designated as precedent), we should remember that the USCIS’s word is not its bond. Don’t risk your law license or your client’s immigration case on the undeserved expectation that the government will keep its word.

There oughta be a law that administrative agencies are bound by an individual’s reasonable reliance on a clearly worded statement issued by that agency, even if some bureaucrats might later find it convenient to repudiate its original pronouncement.

——–

The Bishop of Providence Rhode Island, Thomas J. Tobin, and 15 pastors in his diocese may have hit upon a divinely-inspired strategy to prod the Bush Administration, in the sunset of its reign, into putting the kibosh on its aggressive immigration-raids enforcement policies. The strategy is conscientious objection, a principle that the Administration just endorsed with its new proposed rule published on August 21 by the Department of Health and Human Services that would uphold the right of health care professionals to refuse to participate in abortions or other medical procedures that the worker believes would violate personal conscience.

Sauce for the goose is gravy for the gander. Conscientious objection is a lawful basis to refuse to perform work, which though legal, would violate the worker’s conscience. See, e.g., guidance on the legal right to refuse work based on moral scruples issued by the States of California and Washington. Here is what Bishop Tobin and the priests have suggested in an August 19 letter to Immigration and Customs Enforcement (ICE) after observing a spate of hurtful immigration raids in their state:

What we have witnessed is that the police action of ICE against immigrants has divided the community, instilled fear in our streets, disrupted the everyday life of good people and separated family members, innocent of any crime, from one another. The confusing and secretive detention of those arrested has further complicated the situation. As religious leaders concerned for our people we would be negligent of our pastoral duties if we didn’t speak out against these unjust government policies. . . .

Additionally, we encourage the agents and staff of ICE to evaluate the morality of their participation in immigration raids in the context of their faith and sanctity of their conscience. If their discernment leads them to the conclusion that they cannot participate in such raids in good conscience, we urge them not to do so. If ICE agents refuse to participate in immigration raids in conformity with their faith and conscience, we urge the Federal Government to fully respect the well-founded principles of conscientious objection.

Imagine if ICE agents and staff flat out refused to go on raids. Imagine if Immigration Judges and Government Trial Attorneys did the same. As Bruce Hake has shown us, there are rich scriptural foundations that support a sincere refusal to arrest the undcomented. Lou Dobbs would of course have a conniption fit. But maybe, just maybe, we could revisit our dysfunctional immigration laws and call a pause in our half-baked enforcement policies until a new Administration and Congress could take up a pragmatic and humane effort at comprehensive immigration reform.